29 A.3d 656
Md. Ct. Spec. App.2011Background
- Perez was convicted by a Montgomery County jury of child sexual abuse and fourth-degree sexual offense against his fourteen-year-old step-daughter, Giselle D., with the child sexual abuse merged for sentencing.
- Giselle testified that on December 29, 2008, her mother forced a home drug test; appellant then sought to test Giselle's virginity by digitally penetrating her under threat of reporting her for not being a virgin.
- Giselle complied due to fear of trouble with her mother or police, and appellant persisted despite her pleas to stop.
- Later that evening and the following day, appellant made further sexual propositions and touched Giselle’s clothing, prompting Giselle to seek help from a friend and call the police.
- During investigation, appellant admitted to digitally penetrating Giselle and asserted a gynecological expertise to determine virginity but claimed Giselle placed his hand there.
- At trial, the court instructed on both offenses, and the jury asked for clarification on consent; the court provided a written definition that consent means actual agreement, not mere submission under threats.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in its response to the jury on consent | Perez argues the response added facts beyond the statute, misdefining consent. | State contends the court acted within discretion, aligning with MPJI-CR and case law, properly defining consent for fourth-degree offense. | No reversible error; instruction correct and supported by law. |
Key Cases Cited
- State v. Baby, 404 Md. 220 (2008) (clarified need to respond to jury questions on consent when central to issues)
- Lansdowne v. State, 287 Md. 232 (1980) (instructional communications to jury after evidence; supplemental instructions governed)
- Brogden v. State, 384 Md. 631 (2005) (judge's discretion to give supplemental jury instructions)
- Carter v. State, 366 Md. 574 (2001) (duty to instruct on essential elements and applicable defenses when requested)
- Merzbacher v. State, 346 Md. 391 (1997) (pattern jury instructions favored; need to fairly cover subject matter)
- Dawson v. State, 329 Md. 275 (1993) (judicial role in weighing evidence and credibility of witnesses)
- Harrison v. State, 382 Md. 477 (2004) (standard for reviewing evidentiary sufficiency in criminal cases)
- Rusk, 289 Md. 230 (1981) (consent may involve submission, but lack of consent need not rely on resistance; force not required for fourth degree)
- State v. Green, 119 Md.App. 547 (1998) (pattern jury instructions as practical guidance)
- Arthur v. State, 420 Md. 512 (2011) (non-pattern instruction may be required when naked pattern is inadequate)